Hewson v Shelley
| Jurisdiction | England & Wales |
| Date | 1914 |
| Year | 1914 |
| Court | Court of Appeal |
Letters of Administration - Grant of - Sale of Real Estate by Administratrix - Subsequent Discovery of Will appointing Executors - Revocation of Letters of Administration - Grant of Probate to Executors - Validity of Purchaser's Title -
Letters of administration were granted to the widow of a man who was erroneously presumed to have died intestate. The administratrix as personal representative of the deceased, by virtue of the Land Transfer Act, 1897, sold and conveyed to a purchaser a portion of the deceased's real estate. Upon the subsequent discovery of a will the executors thereby appointed obtained a recall of the letters of administration and a grant of probate to themselves. In an action by the executors to recover possession of the real estate sold by the administratrix:—
Held, reversing the decision of Astbury J. [
Held, also, that even if the grant of administration had been void for want of jurisdiction it was an order of the Court by virtue of which the purchaser's title would have been protected under s. 70 of the Conveyancing and Law of Property Act, 1881.
APPEAL from a decision of Astbury J.F1
On January 30, 1899, George Francis Hewson, the owner in fee simple of the Ovington Glebe Estate, Southampton, died without issue.
On June 13, 1899, after a diligent but unsuccessful search had been made for a will, general letters of administration were granted to his widow, who applied therefor under a genuine belief that her husband had died intestate.
On May 31, 1900, the estate (less four acres purchased by the administratrix) was offered for sale by auction “by order of the administratrix” subject to certain particulars and conditions of sale.
The property was not sold at the auction, but by a contract dated August 23, 1902, embodying the same particulars and conditions of sale, the administratrix agreed to sell the property to the defendant Sir John Shelley for 3500l.
By a conveyance dated October 13, 1902, and made between the administratrix of the one part and the purchaser of the other part, the administratrix “as personal representative of the said George Francis Hewson deceased by virtue of the powers conferred on her by the Land Transfer Act, 1897, and of every other power in this behalf her enabling and also in her individual capacity as to all estates or interests therein (if any) so vested in her” conveyed the estate to the purchaser in fee simple, and the purchaser took possession on the same day.
The administratrix died on September 2, 1911, having by her will, dated November 22, 1910, appointed one Davis to be her executor.
On November 11, 1911, in going through her papers her executor found a holograph will of G. F. Hewson which had slipped down between the back and shelves of certain pigeonholes in a desk or bureau in which G. F. Hewson had apparently placed it.
By this will, dated April 24, 1894, the testator G. F. Hewson bequeathed the Ovington Glebe Estate in trust for his wife for life and after her death to the plaintiff George Hewson on certain conditions therein mentioned. He appointed the plaintiffs, his wife, and another person, who renounced, his executors.
On February 9, 1912, the letters of administration were revoked and probate was granted to the plaintiffs.
On January 14, 1913, the plaintiffs as executors brought this action against the purchaser, his mortgagees, and the tenant of the property for possession and an account of the rents and profits since the widow's death. It was subsequently arranged that the tenant's name should be struck out as a defendant.
The defendants relied on the sale by the de facto administratrix, which they were entitled and indeed bound to assume was made in due course of administration and which they said was in fact so made.
The following additional facts relating to the actual administration of the estate were proved at the trial.
The statutory next of kin of G. F. Hewson were his widow, two nephews, and four nieces, three of the nieces being his co-heiresses.
On June 16, 1899, the solicitors of the administratrix wrote on her behalf to each of the three co-heiresses stating that at the time of G. F. Hewson's death it was confidently believed that he had made a will. They stated that it was known that at one time such a will was in existence and on his death-bed G. F. Hewson informed his wife that he had left everything to her. Every effort, however, to find any will had so far failed, and though it was possible that it might at some future time be found, the presumption at present was that G. F. Hewson must have destroyed his former will with the intention of making a new one, but that this intention was never carried into effect. In these circumstances and acting on this presumption the widow had taken out administration and was now about to administer unless prior to the actual division a will came to light. They then pointed out that the real estate would devolve on the co-heiresses subject to the widow's dower and informed them that it was of the poorest description and untenanted and was being farmed by a bailiff at a considerable loss, and that it was therefore imperative that it should be sold with as little delay as possible, and asking them to sign an enclosed authority for its sale, which was desirable if any advantage was to be derived from it.
The defendants objected that this letter was not evidence against them, but the objection was overruled.
It was also proved that prior to March, 1900, the estate duty, 188l., on the realty was paid mainly out of the proceeds of sale of the four acres, and a small balance, about 15l., out of the shares of personalty to which the widow and the co-heiresses were entitled, and that the debts and funeral expenses, which were trifling, had been discharged. The succession duty was also paid out of the shares of personalty.
On March 1, 1900, the real estate still remained subject to six half-yearly instalments of a land improvement charge against which G. F. Hewson had covenanted to indemnify his vendor. The total instalments amounted to 23l. 13s. 1d. These instalments were regularly paid by the administratrix in March and September.
On May 31, 1900, the date of the abortive auction, the liability was only 19l. 14s. 3d.
On August 23, 1902, the date of the contract, there was only one instalment left, namely, 3l. 19s., which was paid by the administratrix on September 24, 1902, before completion, and on completion on October 13, 1902, the administratrix became entitled to a return of 40l. estate duty and 19l. succession duty overpaid on the real estate. The administratrix had, however, incurred a liability of 69l. 10s. to the auctioneers and solicitors for the abortive auction, and certain solicitors' charges, about 45l., for subsequent attempts to sell the property and in connection with the final winding up of the estate, and which were quite independent of the scale fee on the actual purchase.
One-third of the net proceeds of sale was invested in 1394l. 11s. 8d. Consols to provide dower for the widow's life, and the residue was divided among the co-heiresses. The widow's dower fund was still intact and stood in the name of Davis, her executor, a member of the firm of solicitors acting for the plaintiffs and formerly acting for the widow. The plaintiffs were willing to hand over this fund in exchange for the title deeds.
Upon these facts Astbury J. gave judgment for the plaintiffs, on the ground that the title of the executors related back to the death of the testator, and that the grant of letters of administration and all acts done by the administratrix were void and of no effect. He considered that he was bound to come to this conclusion having regard to the authorities of Graysbrook v. FoxF2 and Abram v. CunninghamF3, which were followed by Warrington J. in Ellis v. Ellis.F4
From this decision the defendant, Sir John Shelley, appealed.
Micklem, K.C., W. M. Hunt, and H. S. Preston, for the appellant. The learned judge in the Court below felt himself bound by the authorities to decide as he did, but we submit that this Court is not so bound, and that the judgment under appeal ought to be discharged. The sale was in due course of administration, perfectly regular, and necessary to meet charges on the estate; although the ordinary debts were few and had been paid by the widow out of her own funds. She was obliged to take out letters of administration, and they were granted in the ordinary way; everything had been done with the most perfect good faith, and the learned judge has held that because a will which appointed executors was afterwards found the Court had no jurisdiction to make the grant, and that the grant and everything done under it were void ab initio. That is an impossible view at the present day. The authorities on which Astbury J. relied were Graysbrook v. FoxF5, Abram v. CunninghamF6, Boxall v. BoxallF7, and Ellis v. Ellis.F8 The first of those decisions never was right and at all events it is not law now. It was held that where administration had been granted, but a will which appointed an executor had been afterwards proved, the administration was absolutely void ab initio, and dispositions of the assets by the administrator were void also. But Walsh J. said (at p. 282) that alienations of assets for the purpose of paying funeral expenses and debts would not be avoided: a statement...
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